Follow up: United States Supreme Court certs Eighth Circuit-Nebraska Federal District Court case on federal partial-birth abortion ban; does judicial trump congressional factfinding?Scotus Blog. Scotus may yet have to face down the partial birth abortion controversy, having sidestepped challenging the Stenberg v Carhart holding that any abortion regulation must contain a "health(not just life) of the (aborter)" in the Ayotte case. The Nebraska partial birth abortion law's big federal brother Pub. L. No. 108-105, 117 Stat. 1201 (codified at 18 U.S.C. § 1531) will go up for cert review to the Supreme Court however, also the fruit of Judge Kopfs good services to Dr Carhart. The Eighth Circuit dismissed the government's contention that Congressional findings could overrule earlier judicial factfindings, in this case whether Congress could find that the abortion procedure in question was not necessary for the health of the woman while the courts had found it was necessary.

In the absence of new evidence which would serve to distinguish this record from the record reviewed by the Supreme Court in Stenberg, we are bound by the Supreme Court’s conclusion that “substantial medical authority” supports the medical necessity of a health exception.